Paragraph numbers below are the court’s original numbering, recovered from the source text.
8. A plea of right of private defence cannot be based on D surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant ~ . I whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private r defence is available to an accused, the entire incident must be r- examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal tres- t pass, and attempts at such offences in relation to property. Sec- i tion 99 lays down the limits of the right of private defence. Sec- tions 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of pri- G vate defence extending to voluntary causing of death, the ac- cused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or griev- ous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to H causing of death. Sections 100 and 101, IPC define the limit SALIM & ORS. v. STATE OF HARYANA [DR. ARIJIT PASAYAT, J.] and extent of right of private defence.
9. Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and prop- erty respectively. The right commences, as soon as a reason- able apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed but not until there is that reasonable-ap- prehension. The right lasts so long as the reasonable appre- hension of the danger to the body continues. In Jai Dev. v. State of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension disappears and the c threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.
10. In order to find whether right of private defence is avail- able or not, the injuries received by the accused, the imminen~e D of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have re- course to public authorities are all relevant_factors to be consid- ered. Similar view was expressed by this Court in Biran Singh v. State of Bihar (AIR 1975 SC 87). (See: Wassan Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja Sekharan v. State represented by Inspector of Police, TN. (2002 (8) SCC 354).
11. As noted in Butta Singh v. The State of Punjab (AIR 1991 SC 1316), a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and G use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be H A pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human· B reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-pr~servation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private- C defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.
12. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See D Vidhya Singh v. State of M.P (AIR 1971 SC 1857). Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and :… confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the E question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a Court room, or that which would seem absolutely necessary to a perfectly cool F bystander. The person facing a reasonable appq_hension of threat to himself cannot be expected to modulate \?i3 defence step by step with any arithmetical exactitude of only !hat much which is required in the thinking of a man in ordinary times or under normal circumstances.
13. In the illuminating words of Russel (Russel on Crime, 11 1h Edition Volume I at page 49): " …. a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, SALIM & ORS. v. STATE OF HARYANA (DR ARIJIT PASAYAT, J.] habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable."
14. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful C aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no D longer survived.
15. The above position was highlighted in V Subramani and Anr. vs. State of Tamil Nadu (2005 (10) SCC 358).
16. On considering the evidence it is held that existence of the material to show that the accused were exercising the right of private defence, was not established. On the date of occurrence i.e. 25.11.2000 the land in question was lying va- cant and the matter regarding possession was pending adju- dication before the revenue authorities. After the order of re- mand passed by the Commissioner on 17.2.2000, there is no material to show who was in possession over the land in ques- tion. Learned counsel for the appellant has brought to our no- tice the evidence of Patwari to show about the possession about the date of occurrence. It is true that the Patwari has taken that G during the investigation he found that actual physical posses- sion of the accused persons over the disputed property. It is also similarly stated by PW 22 SHO. The Trial Court observed that one of the parties used force to take possession of the land in question.
17. Above being the position the plea that the accused persons were exercising right of private defence cannot be ac- cepted. Though the material on record shows that though ini- tially the accused were ex!3rcising right of private defence, same was exceeded. In the factual background appropriate convic- B tion of Salim would be under Section 304 Part I read with Sec- tion 149 IPC. The conviction is accordingly altered. In case of other accused persons the conviction would be under Section 304 Part I read with Section 149 IPC. The conviction and sen- tence imposed for the other offences remain unaltered. It is c stated that accused-Salim was in custody for more than 8 years. In the background facts the sentence is fixed at the period al- ready undergone. He shall be released forthwith unless required to be in custody in any other case. The conviction and sentence in case of others are maintained.
18. The appeal is disposed of accordingly. D.G. Appeal disposed of.